Saturday, August 3, 2013

SPEECH, RELIGION, AND EQUAL PROTECTION

Speech, religion, and equal protection in the RH
LAW

Joaquin G. Bernas, S.J.

In the course of the Supreme Court
oral arguments on the RH Law, the first issue that came up was the meaning of
“conception” in the constitutional provision which says “The State . . . shall equally protect the life of the
mother and the life of the unborn from conception.” The view which, to mind,
prevailed during the first day of oral arguments was that conception happens at
fertilization and not at implantation in the uterus. This meaning is also implicit in the definition of abortion
as the expulsion of a fetus anytime before its viability. Expulsion after viability is already
infanticide, no longer abortion.

The other issues that have arisen are
liberty of speech, of religion, and equal protection.

I have been involved in the
discussions of these issues even while the RH Law was still being debated in
Congress and I feel that it is my
civic duty to continue my participation until the Supreme Court arrives at a
decision. I propose to discuss the issues of speech, religion, and equality as
they have cropped up in the oral arguments.

Any student of constitutional law will
immediately see that by their nature the constitutional doctrine on speech and
religion are closely intertwined.
Freedom of speech includes not just the right to speak but also the
right not to speak. Freedom of
religion for its part involves not just the right to choose what to believe but
also and especially the right to externalize or not to externalize one’s belief. Externalization of one’s belief is done
through speech or other forms of communication whether oral or symbolic. Freedom of religion is violated when
one is either forced to speak or in any manner communicate his belief or when
one is prevented from expressing his religious belief.

All these take place in a pluralistic
society where government may not prefer one religion over other religions. It is against this background that I
propose to discuss provisions of the RH Law which deal with speaking or not
speaking about religion.

We must understand that the health workers under the RH Law have
the public duty to implement its provisions for the common good and not just
for the good of some religious adherents. Moreover, a public duty is a public
trust to be exercised for the good of all and not for the good of the preferred
religion of a majority. And since
our government is under a democratic system which respects plurality of
religions, and considering that the Law is about sexual practices about whose
morality our people are divided, it is inevitable that some health workers may
encounter duties which their religion do not allow them to do. This is recognized by the law and the
Implementing Rules and Regulations contains a proviso on this matter, namely:

“Provided, That the
conscientious objection of a health care service provider based on his/her
ethical or religious beliefs shall be respected; however, the conscientious
objector shall immediately refer the person seeking such care and services to
another health care service provider within the same facility or one which is
conveniently accessible . . .”

According to critics of the RH Law, however, for all its noble
intention, this Rule violates freedom of speech and freedom of religion
resulting in a two-fold violence of the conscience of the health worker. First, by obliging the health worker to
make a referral, the law is obliging him to speak contrary to his right not to
speak. Second, by obliging the
health worker to make the referral, the health worker is being obliged to send
the patient to where she or he can sin thereby making the health worker who
makes the referral a participant in the sin.

Indeed, if the health worker believes
that these are sinful acts which she or he cannot perform without violating his
or her conscience, he or she should not be forced to do so. Her belief, whether right or wrong in
the view of government, must be
honored. But the next question is,
considering that this inability to perform a legal duty strikes at the very
heart of the purpose for which the health center exists, is it reasonable or
even just for the person to cling to the job? In a labor law situation, when a laborer on strike refuses
to follow a return to work order, he will not be forced to return to work, but
he may have to look for another job. Or should we ask that such RH worker be
retired as a pensionado martyr?

Another objection which RH Law critics bring up is against the
provision on age appropriate sexual education in public and private
schools. To evaluate this
criticism intelligently it is necessary to see the provision on the
subject. It should be noted
that the law does not yet attempt to impose a specific program. Rather, it provides that a program be
formulated following certain careful guidelines for the manner in which the
program should be formulated. Since the law does not yet create the program
itself, this is not yet the time to challenge this aspect of the RH Law. Wait until the program is
formulated. Before that, there is
no “case” to bring to Court.

2 comments:

We must put aside all judgment of our own, and keep the mind ever ready and prompt to obey in all things the true Spouse of Christ our Lord, our holy Mother, the hierarchical Church.--Saint Ignatius of Loyola

Dear Father Bernas, The Holy Father St Ignatius is talking to you now that you must put aside all judgment of our own, and keep the mind ever ready and prompt to obey in all things the true Spouse of Christ our Lord, our holy Mother, the hierarchical Church.